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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1285
            
                                            
NORTH CAROLINA COURT OF APPEALS
        

                                            
Filed: 15 May 2007


STATE OF NORTH CAROLINA
    
v .                         Wake County
                            No. 05 CRS 126285, 125089
DONALD BARNES
    

    Appeal by defendant from judgment entered 19 April 2006 by Judge Henry W. Hight, Jr., in Wake County Superior Court. Heard in the Court of Appeals 25 April 2007.

    Attorney General Roy Cooper, by Kathleen M. Waylett, Special Deputy Attorney General and W. Wallace Finlator, Jr., Assistant Attorney General, for the State.

    Michael J. Reece, for defendant-appellant.

    LEVINSON, Judge.

    Donald Barnes (defendant) appeals from judgment entered on his convictions of first degree arson, damage to personal property, stalking, and communicating a threat. We find no error.
    Defendant was tried before a Wake County jury in April 2006. The State's trial evidence tended to show, in pertinent part, the following: Rosalie Williams Snead (“Snead”) testified that she had a five year romantic relationship with defendant, starting in 2001. Their relationship was characterized by conflict, domestic violence, and frequent separations. In December 2005 the defendant was living with Snead in her apartment, located at 3133 Aileen Drive, in Raleigh. On 16 December 2005, while Snead was at a church party, the defendant left obscene messages on her cellphone. When she returned home after the party, defendant met her in the parking lot of their apartment complex and accused her of cheating on him.
    Snead decided to separate from defendant. She told him to remove his possessions from the apartment because she planned to change the locks the next day. Snead left to spend the night with her friend, Tanya Jacobs (Jacobs). Defendant followed her, trying to force her off the road and eventually crashing his own vehicle into a median barrier. By the time Snead arrived at Jacob's house, defendant had already called several times, and during the next ten hours he telephoned approximately thirty (30) times, threatening both Snead and Jacobs.
    The next morning, Snead went to the magistrate's office in downtown Raleigh to seek a restraining order. While she was there, defendant called her more than thirty (30) times and threatened her. Defendant also told Snead that he had damaged her car; this damage was later confirmed by a Raleigh law enforcement officer. When Snead gave her address to a police officer, she learned that there was a fire burning at her apartment building.
    Jacob's testimony corroborated Snead's testimony that she spent the night at Jacob's house and that defendant made many threatening phone calls during the night. Raleigh police officers also testified about the events surrounding the fire at Snead's apartment. Officer Connors testified that at around 2:30 p.m. on 17 December 2005 he was dispatched to the apartment. When he arrived, the fire was extinguished, but there was still a lot ofsmoke. Firefighters on the scene told him that they suspected arson. Officer Rinks testified that he was dispatched to the Wake County magistrate's office in response to a reported incident of intentional damage to an automobile. While he was at the magistrate's office, defendant called more then (10) ten times and spoke to both Rinks and to Snead.
    Firefighters from the Raleigh Fire Department testified about the nature and origin of the fire. Firefighter Mike Murray testified that at around 2:00 p.m. on 17 December 2005 he was dispatched to the fire at 3133 Aileen Drive. In Snead's apartment he found a small fire on the floor of the bedroom closet, which firefighters extinguished. Murray observed a lot of dense smoke and noted that Snead's bedspread was “shredded and torn up.” Firefighter Robert Harper corroborated Murray's testimony about the fire and the shredded comforter.
    Firefighter Johnnie Dotson, Jr., an arson investigator with the Raleigh Fire Department, was qualified as an expert in fire investigations. He had investigated the fire at Snead's apartment, and testified that the origin of the fire was the bedroom closet. He estimated, based on the color and density of the smoke, that the fire burned “for a significant amount of time” before it was extinguished. He testified that the fire might have burned for between forty-five minutes and several hours before it was detected. The Fire Department eliminated candles and electrical wires as possible causes of the fire. Dotson testified that “given the facts that we gathered from the police officers and thefirefighters, yes, we had come to the determination, Captain Boyette and myself, this was possibly a case of arson.”
    Captain David Boyette of the Raleigh Fire Department was also qualified as an expert in fire investigation. He corroborated Dotson's testimony that the fire had no apparent cause, and that they eliminated candles and electrical wires as possible sources. He testified that “[f]rom what I saw I feel like it is [arson].”
    Sergeant Oosterhoudt of the Raleigh Police Department interviewed both Snead and the defendant. His recitation of what Snead had told him corroborated Snead's testimony. Oosterhoudt also testified that the defendant had stated that he had a key to the apartment and that he went there on 17 December 2005 to retrieve his clothes. Defendant had emphatically denied setting the fire.
    Tony Miller, an engineer with a cell phone company, testified that he had reviewed defendant's cell phone records for the period between the night of 16 December and midday on 17 December 2005. Defendant's cell phone records showed that he telephoned Jacob's house and the magistrate's office about thirty (30) times each during this time. Miller also testified about technical records of the specific “cell sites” from which defendant's calls were made. These records indicated that shortly before 1:00 p.m. on 17 December 2005 defendant made a call that used the cell site about a third of a mile from 3133 Aileen Drive. The cell site records also indicated that on 17 December defendant had placed calls using cell sites in downtown Raleigh.    The defendant did not present evidence.
    Following the presentation of evidence, the jury found defendant guilty of first degree arson, damage to personal property, stalking, and communicating a threat. The trial court imposed a sentence of 117 to 150 months imprisonment for first degree arson, followed by a consolidated sentence of 150 days imprisonment for the three misdemeanor offenses. From these judgments and convictions, defendant appeals.

_________________________
    Defendant argues on appeal that the trial court erred by denying his motion to dismiss the charge of first degree arson, on the grounds that the evidence was insufficient to submit to the jury. We disagree.
        In order to survive a motion to dismiss based on the insufficiency of the evidence, the State must present substantial evidence of (1) each essential element of the charged offense and (2) that the defendant was the perpetrator. Substantial evidence refers to such “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” When considering such a motion, the court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference. It does not matter whether the State's evidence is direct, circumstantial, or both; the test for resolving a challenge to the sufficiency of the evidence is the same.

State v. Curmon, 171 N.C. App. 697, 702, 615 S.E.2d 417, 421-22 (2005) (citing State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (2000), and quoting State v. Lucas, 353 N.C. 568, 580-81, 548 S.E.2d 712, 721 (2001)).     “The common law definition of arson is in force in this state. Arson is the willful and malicious burning of the dwelling house of another person.” State v. Allen, 322 N.C. 176, 196, 367 S.E.2d 626, 637 (1988) (citations omitted). Accordingly, “there can be no conviction of arson without satisfactory proof, either by direct or circumstantial evidence, not only that the building was burned, but also that it was burned through some criminal agency[.]” State v. Thomas, 241 N.C. 337, 341, 85 S.E.2d 300, 303 (1955) (citations omitted).
    In our determination of whether the State presented sufficient evidence that (1) the fire was intentionally set, and (2) that defendant was the one who started the fire, we are guided in part by the holding of State v. Curmon. In Curmon, as in the instant case, the defendant was charged with first degree arson of the house where his ex-girlfriend lived. The defendant had a history of threats against the victim and, although there were no eyewitnesses to the crime, defendant's cell phone records indicated that he had placed calls from the vicinity of the victim's house at the approximate time of the fire. This Court held that the evidence, “taken in the light most favorable to the State, tends to show:
        (1) defendant was jealous of [the victim's new] relationship[, and] . . . harassed the couple . . . demonstrating defendant's motive to set the fire; (2) defendant left a message a few months before the fire threatening to burn the couple up if they did not return his call; (3) on the night of the fire defendant left another threatening message on [the victim's] cell phone[;] (4) defendant was in the vicinity of [the] apartment at the timethe fire occurred, as demonstrated by his cell phone records, thereby establishing he had the opportunity to set the fire; (5) defendant had previously . . . threatened to kill [the victim]; and (6) the gasoline on the mat indicated the fire was deliberately set.

Curmon, 171 N.C. App. at 702-03, 615 S.E.2d at 422.
    In the instant case, viewed in the light most favorable to the State, the State's evidence tended to show that:
    The defendant had a history of violence and threats against Snead;

    When Snead told defendant to move out of her house on 16 December 2005, defendant became very angry at Snead and followed her in his car when she went to a friend's house;

    From the night of 16 December until midday on 17 December, defendant made more than fifty threatening or harassing phone calls to Snead;

    Defendant admitted entering the apartment on the morning of the fire;

    Defendant's cell phone records indicated that he was in the vicinity of Snead's apartment at a time corresponding to the firefighters' estimate of when the fire was started;

    The firefighters found no apparent accidental cause for the fire; and

    Two expert witnesses in the area of fire investigation testified to a belief that the fire was intentionally set.

    We further observe that, during Snead's testimony, she stated the following:
        PROSECUTOR: Did you ever have a conversation with the defendant about burning your house down?:

        SNEAD: Yes, I did.

        PROSECUTOR: And when was that?
        SNEAD: Came to visit him in jail because I wanted to see him actually in jail. Not to be spiteful. I am not a spiteful person. But why would you do something like that to me, you know? What have I done? At that point he started shaking making me feel sorry saying he is getting four years. He did it, but no, he didn't do it. His friends did it. He said someone in the apartment to [sic] do it. So, that's the same thing.

Snead's testimony concerning an equivocal admission by defendant is some evidence that the defendant set the fire. This, together with the remaining evidence in the case, was sufficient to submit the arson charge to the jury.
    No error.
    Judges McGEE and JACKSON concur.

    Report per Rule 30(e).

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